Obama's Former Legal Adviser Urges U.S. To 'Disciple Drones'

Last month, Harold Koh, who is a lawyer who worked for President Obama, gave a speech where he criticized the way the president is running the drone war against terrorist targets overseas, which is an interesting thing because Koh himself provided much of the legal underpinning that the president relies on to keep the use of drones within the boundaries of national and international law. Koh waited until he had left his White House position to speak out for the need to, as he puts it, discipline drones, not because he's against drones per se but because he sees them being deployed in a way that keeps too much about their use shrouded in an unnecessary level of mystery, which makes people suspicious about what they're really up to.

In addition to disciplining drones, Koh called for the U.S. to withdraw troops from Afghanistan and for the Obama administration to close the Guantanamo prison.

Now, if you have questions for Harold Koh, who's about to be our guest, about his vision for ending what he calls the forever war, give us a call. Our number is 800-989-8255, or email us at talk@npr.org. Harold Koh is currently the sterling professor of international law at Yale, and he joins me here now in Studio 42. Harold, welcome to TALK OF THE NATION.

HAROLD KOH: Thank you, John.

DONVAN: So you used the phrase forever war in your speech, and you raised it as a problem. But what do you mean by the concept?

KOH: Well, I think on September 11 people felt that something new and strange had happened. About seven days later, Congress declared war against al-Qaida, the Taliban and associated forces, and that conflict has gone on for 12 years. That is now eight years longer than the Civil War or World War II and four years longer than the Revolutionary War. Most wars come to an end, and until recently there have been very little discussion about how this war would come to an end or whether it would become a perpetual global war on terror.

So the speech that I gave was designed to ask that important question: How do we bring this war to an end, and is there a strategy for doing so? A few weeks later, the president gave his own speech in which he also called to the end to war. So I think this has been a very positive movement.

DONVAN: I mean, there was a concept from - throughout the decade of a war on terror that was larger than either the operation in Iraq or operations in Afghanistan. So I just want to see where the distinction is when you're talking about ending the situation in Afghanistan, U.S. presence in Afghanistan in a military sense. Is that what you're talking about when you talked about this forever war, or are you talking about this larger, this larger sense that this enemy is always going to be out there and we always have to be engaged in some sort of action against them?

KOH: So I've never believed there's a global war on terror, and this administration never used that term. If you go back to 2009, you can't find it. What the president said, very specifically, is that we are engaged in a conflict with a particular group of people, al-Qaida and their associates. And that's a group of about 3,000 people. Now, they are not limited in their activities to one country, but that doesn't make it a global war against anybody who hates us, and that's a very important distinction.

If you have a war against a concrete group of people who could be defeated or, as in the case of the Taliban, you can enter in some sort of peace negotiations with them, the war can end. But if you're in a war against anybody who hates us, there will always be someone who hates us and it will never end. That's the difference between a forever war and a war that can be brought to an end.

DONVAN: In terms of Afghanistan - or in terms of the larger forever war, you talked about three points. You talked about withdrawing from Afghanistan, which seems to be the plan and it seems to be underway. I take it you're satisfied with that point being realized.

KOH: I think it's the only way to go. I think that the - there was a surge there. I think that people are tired. The soldiers wanted to come home. People wanted them home. I think there have been a lot of changes in Afghanistan, which I enumerated in my speech: great growth of gross domestic product, huge numbers of cellphone contracts, education of women, upsurge of the Internet. So there now has to be a new beginning in Afghanistan. But with regard to al-Qaida, the difference is you can't just declare war and walk away if they haven't been defeated because then they will attack again.

So there has to be a strategy for exactly how to address that separate concern. Now, I think the administration has done a very important thing. The last administration, I think, just diverted our attention from what was important. They invaded Iraq. They opened Guantanamo. They started military commissions. They engaged in torture. All of these hurt us internationally and didn't address the real problem. And so we returned to the real problem, which is how to defeat al-Qaida, quite late. And that's where these different pieces of strategy came in.

DONVAN: And your second point in terms of responding to a situation that you think needs to be rectified, one of those points is to close Guantanamo. And again, the president - since you gave the speech, the president has actually moved in that area by appointing somebody to take charge of the process of shutting Guantanamo finally. Are you confident that this is more than just a gesture? Do you think it's going to happen?

KOH: I think the president went back and said I'm going to go at this problem again. He couldn't let it go. I think the most important thing about his speech was it came at a time when there was a lot of fear about other things, you know, the IRS, and he could have easily just not said anything about it. But instead they have appointed Cliff Sloan, who is a very prominent and able Washington lawyer who's worked for two administrations, to be the special envoy. And the numbers are down.

So you have to remember that George Bush - George W. Bush brought 500 people off Guantanamo. Congress said not a word. When President Obama took office there are over 200. He brought another 60 people off. And then suddenly there was this resistance by Congress. New legislation passed, and then it slowed to a halt. And I think that that effort had to be revived. I think it may take a little bit of time now, but at least now the momentum is moving again.

DONVAN: The tone of your speech overall was political in the sense that you laid responsibility for a lot of the problems that you were talking about at the feet of the Bush administration. You were pretty specific about that, even had a brief moment of fantasy of a world in which Al Gore had been elected president and how much better that would have been.

So in a sense it struck me as partisan that you're an Obama guy, and yet the third point that you raised in the speech is really one that is hitting the Obama administration quite hard, on the issue of drone strategy. And that's the issue of using these unmanned aircraft, which are armed and can kill without risk to any pilot or human on the American side 'cause there is no pilot or human in these aircraft.

They've been used an awful lot by the Obama administration, much more than the Bush administration used them. And an enormous amount of criticism has been coming particularly in the last four or five months because of that. The president has addressed this topic recently, and I just want to listen quickly to what he said most recently.

PRESIDENT BARACK OBAMA: Nevertheless, it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war. For the families of those civilians, no words or legal construct can justify their loss. For me and those in my chain of command, those deaths will haunt us as long as we live, just as we are haunted by the civilian casualties that have occurred throughout conventional fighting in Afghanistan and Iraq. But as commander-in-chief, I must weigh these heartbreaking tragedies against the alternatives. To do nothing in the face of terrorist networks would invite far more civilian casualties, not just in our cities at home and our facilities abroad but also in the very places, like Sana'a and Kabul and Mogadishu, where terrorists seek a foothold.

DONVAN: So your response then, Harold Koh, to the president's remarks, and put that in light of the criticisms you've made that you say that drones need to be disciplined.

KOH: So I think that the point that I made is suppose that the day after Congress declared war on al-Qaida, the then president said I think there are about a core of leaders who are in a particular place and we're going to have to go to war against them, capture them if possible and kill them if necessary, and I'm going to use a drone to do it. I don't think that people would have had the kind of reaction that's happened. Instead, by doing these other things, diverting our energies, investing in a war in Iraq, people became impatient.

And then when - what then happened, which is that the al-Qaida leadership dispersed and they returned to the original mission, is much harder to accomplish. Now, in March of 2010, when I was the legal advisor to the State Department, I stated publicly what we believed to be the legal standards, and the question is, are those standards being followed? And the administration took the position that they were, but then refused to release the information necessary for others to come to the same conclusion.

My view is it's a three-step process, John: transparency, consultation and standards. We ought to be open about what we're doing. If we think that someone has been lawfully targeted, we should explain why. If we've made a mistake, we should admit it. We should consult with Congress on our allies and we should agree to standards with our allies on how these should be used so that countries that have less good motives won't try to hijack this for their own purposes.

DONVAN: You're listening to TALK OF THE NATION on NPR News.

Let's bring in Blake from Sugar Land, Texas. Hi, Blake. You're on TALK OF THE NATION.

BLAKE: Hi. Thanks for taking my call.

DONVAN: Sure.

BLAKE: Yeah. My question is this - I'll try making this concise as I can. As you - I like this term the forever war. As you see these forever wars escalating and going on, are you - do you think that we're going to see more and more of these covert actions and drone strikes and oftentimes some, you know, innocent people at times getting killed, escalating along with these forever wars as they continue to go on since the military isn't directly involved, and do you see that as a potential problem? Thank you.

KOH: Thank you, Blake. I think, you know, ordinary terrorist situations are dealt with through law enforcement. We saw that at the Boston marathon. Those guys weren't at war with us. They're criminals and were pursued that way.

What happened on September 11 was unusual. We had an attack on our soil by an organized unit of about 3,000 people that killed about 3,000 people. And Congress declared war on them as they did in other wartime situation.

But when you, you know, get to the heart of the enemy, at a certain point you say that war is over and we decide whether there's a new one. This allows there to be a democratic process where we can decide how much blood and treasure we want to devote to a particular struggle, and so that the president isn't given an open-ended authorization to just use force against whoever he wants without limit.

DONVAN: What is the corrosive effect of the current practice, the way it's currently happening?

KOH: Well, I think the president put it well. He said that it's very difficult to maintain your freedom in the state of perpetual war, that...

DONVAN: It's actually - I meant more than the drone policy. In other words, as long as drones are not disciplined in the way you suggest, what's the downside? How does that hurt?

KOH: I think it erodes the confidence in our allies that were meeting standards of international law. It erodes the confidence of those who are on the fence about us as to whether or not we are distinguishing between combatants and civilians.

I think we are claiming that we are fighting within the scope of the law and we have standards that we've announced that we've said that we want to follow. So we should make it clear that the facts show that we are, in fact, following those standards.

DONVAN: And in the absence of that, it looks like we're hiding something?

KOH: If we have nothing to hide, we should be transparent. And so if we're not being transparent, it look like we have something to hide.

DONVAN: Let's bring in David from Austin, Texas. Hi, David. You're on TALK OF THE NATION.

DAVID: Good afternoon. Professor, how are you? Good to talk to you. I have a question that is from varying perspectives. When this war is declared, there wasn't a lot of exit strategy to it. And I guess from your perspective and also if you could put yourself in their shoes - from the president's or Congress's perspective, or even the enemy's perspective - what does a legitimate victory look like in the war on terror?

KOH: It's a good question. So you used the most important phrase, exit strategy. Virtually every war that we have is accompanied by a way to end it. And there are three parts here. Al-Qaida's a group of about 3,000 people, how do you defeat the heart of it? The president said that 23 of the 30 top leadership have been removed from the battlefield.

The second part is the Taliban, who were supporting al-Qaida - at the top of your show, John, you announced that negotiations are beginning with them and it may be possible to reach some kind of peace accord where they agree to follow the Afghan constitution, renounce violence but no longer on the battlefield.

And then the third are associated forces. Are there new members of al-Qaida that have continued the fight? Or are there simply sympathizers who aren't really allies of theirs? And so I think the three parts of that are defeat al-Qaida, conduct negotiations with the Taliban, and be quite restrictive on who we think are new co-belligerents.

DONVAN: So you would - that would be a scenario that you would actually call the time when we're not at war?

KOH: Yes. If you do all three, this forever war ends.

DONVAN: Let's go to...

DAVID: OK. Thank you.

DONVAN: Oh, David, thanks very much for your call. Let's go to Mary Jane in Oakland, California. Hi, Mary Jane. You're on the TALK OF THE NATION, and I have to give you about 25 seconds to ask your question.

MARY JANE: My question is, how does one negotiate with zealots?

KOH: Well, zealots do negotiate.

JANE: They negotiate with a very, extremely narrow guidelines, usually sacrificing the rights of women in this particular case. So how does one justify, you know, dividing a populous that one doesn't even live in...

DONVAN: Mary Jane, I have to hit you on the 25 seconds, so let Harold Koh go back and answer.

KOH: So I tried to address this in my speech. I think that the Afghanistan that exists today has a lot more openness and freedom than back in 19 - in the 1990s. And what has gone on is an effort to try to use this open - more open society in Afghanistan to bring about a better solution.

DONVAN: Harold Koh, former legal adviser for the State Department and currently a professor at Yale Law School, thanks so much for joining us.

And tomorrow Neal Conan is back with the conversation about what companies are doing after a judge rules that most interns must be paid. That's tomorrow in this hour. This is TALK OF THE NATION from NPR News. I'm John Donvan in Washington. Transcript provided by NPR, Copyright NPR.